Monday, June 26, 2006

Sometimes really bad ideas have adverse consequences that extend even beyond the most immediate detrimental impact of the bad idea. As I have explained many times, "net Neutrality" is a bad idea that, if adopted, is likely to stifle future innovation and investment on the Internet. That's bad enough. But the double-speak that is being employed to sell NN is distorting the accepted understanding of the First Amendment and undermining the free speech values protected by the First Amendment. This derogation of constitutional rights has been too little noted, and it is too important to be ignored.

As everybody schoolboy knows (or should), the First Amendment protects us against government censorshipor restriction of private speech ("Congress shall make no law...."). But so eager are the net neutrality advocates to turn the broadband providers into traditional common carriers that they willingingly turn the First Amendment on its head. Thus, we have the example of the last Stevens bill draft, with Section 904 entitled "Application of the First Amendment." It reads in part: "Consistent with the First Amendment...no Internet service provider...may limit, restrict, ban, prohibit, or otherwise regulate the content on the Internet because of the religious views, political views, or any other views expressed in such content..."

Of course, this provision is demonstrably inconsistent--not consistent--with the first great protection in the Bill of Rights. The First Amendment's free speech clause protects private parties from having their speech restricted by the government. It does not restrict a private party from restricting the speech of another private party. A law purporting to prevent a private operator of a communications facility from regulating the content of speech carried on its own communications facility is incompatible with First Amendment jurisprudence. (I know that in the Red Lion case in the 1960s the Supreme Court upheld the government's Fairness Doctrine that required broadcasters to carry content they might not otherwise have wished to carry. I also know, putting aside whether the Court would reach the same result today even as to broadcasters, that the decision rested on the so-called scarcity of the public's airwaves. And I know that the Court would not extend the Red Lion rationale to non-spectrum-based cable, telephone, or other broadband providers today.)

This distortion of First Amendment principles does more than just harm the cable, telephone, wireless, and satellite operators that, in effect, involuntarilywould be turned into common carriers, required to carry all content indiscriminately. Sure, the derogation of their free speech rights injures them. But when the net neutrality double-speak turns the First Amendment on its head, all American citizens lose something very important.